Discrimination Towards Immigrants Living With HIV/AIDS Continues After “HIV Ban”
Guest blogger: Kathryn Culver, first-year law student, University of San Francisco:
Did you know that from 1993 until January 4, 2010, any HIV positive foreign national was barred from obtaining a short-term visa or lawful permanent residence (LPR) in the U.S.? Short-term visa and LPR applicants were considered inadmissible solely based on their HIV status. HIV status not only served as a basis for excluding immigrants, it also permitted U.S. immigration enforcement to deport a person suffering with HIV/AIDS from the U.S. (The Center for HIV Law & Policy).
The end of the “HIV ban” on immigration came after a concerted hard-working coalition of immigration, HIV, LGBT and human rights organizations including political leaders to stop the discriminatory policy against immigrants living with the disease. However, today HIV status remains a relevant factor in immigration proceedings and the treatment immigrants receive in detention facilities. (Immigration Equality).
Today, HIV-positive individuals who journey to the U.S. with hopes of being granted asylum face difficult decisions. If asylum applicants can prove that they endured past persecution or have a credible fear of future persecution in their native countries because of their status, HIV status can form the basis for seeking asylum in the U.S. However, the fears associated with an HIV status such as stigma, violence, and isolation from immigrant and non-immigrant communities in the U.S. may “deter asylum seekers from using legal immigration channels” in order to avoid disclosure and also to have a chance of starting a new life in the U.S. without being labeled by their HIV status. Amon & Todrys (2008).
Immigrants applying for asylum protection also are frequently detained in immigration detention facilities where antiretroviral therapy (ART) is inaccessible or inadequately supplied therefore presenting another difficult decision: disclose HIV status in hopes of receiving ART to treat HIV and risk other detainees finding out, or keep silent and risk dying of an HIV-related illness in custody?
Before the end of the HIV ban, a Human Rights Watch investigation of immigrant detainees with HIV/AIDS discovered that even the detainees who made the tough choice to disclose their HIV status in order to receive ART, which requires complete adherence to ART therapy in order to avoid viral resistance and prevent opportunistic infections, while in custody suffered numerous human rights abuses including: inadequate or sometimes no access to health care and ART, breach of confidentiality of HIV status, and harassment by fellow inmates and detention personnel.
The 2007 Human Rights Watch report titled, Chronic indifference: HIV/AIDS services for immigrants detained by the United States, found that, “ICE health care standards, particularly those addressing HIV/AIDS, fall below correctional health care standards established by nationally recognized experts and fail to comply with international recommendations for the treatment of prisoners with HIV/AIDS.” The report was prompted by an investigation of the death of Victoria Arellano, a 23-year-old HIV positive transgendered woman from Mexico who died in ICE custody from AIDS-related complications after medical staff refused to provide her with the daily antibiotics she had been taking before being detained. Human Rights Watch attempted to interview the key witnesses to Victoria’s death, but was prevented from doing so because ICE transferred them to another detention center before Human Rights Watch investigators arrived. Human Rights Watch’s investigation was further limited by the Division of Immigration Health Services’ (DIHS) failure to keep records of the quantity of detainees living with HIV/AIDS, thereby making it impossible for Human Rights Watch to analyze DIHS’ procedures for administering medical care to HIV positive detainees. Yet, interviews with detainees and medical reviews still uncovered a “consistent pattern of sub-standard care.” The investigation found that poor medical care included: 1) “Failure to consistently deliver anti-retroviral medications,” 2) “Failure to conduct necessary laboratory tests in a timely manner, including CD4 and viral load testing as well as resistance testing,” 3) “Failure to prevent opportunistic infections,” 4) “Failure to ensure continuity of care including access to medical specialty care,” and 5) “Failure to ensure confidentiality of medical care, exposing detainees to discrimination and harassment.” (See the report here: https://www.hrw.org/reports/2007/us1207/).
One of the main factors driving the poor health care standards in ICE facilities was the ICE policy of limiting medical treatment to emergency situations. With this policy in place, DIHS employees were encouraged to limit providing health care treatment besides provision of pain medications until medical issues could no longer be ignored. This inhumane policy is exactly what led to Victoria’s death. As a result of the many deaths and inhumane treatment of immigrant detainees, the American Civil Liberties Union (ACLU) sued ICE for deficient medical care including lacking mental health treatment. ICE’s settlement with ACLU included a promise to “change its policy on medical care that had led to the denial of what ICE deemed to be ‘non-emergency’ care, including heart surgeries and cancer biopsies.” Yet, a recent article revealed that eight detainees died in ICE custody between 2010-2012. (Report Blasts ICE Over Abyssmal Medical Care of Detainees).
In the article, ICE acknowledges that their work to implement ICE’s 2011 performance-based national detention standards remains ongoing. However, as the number of immigrants in detention centers rise due to the persistent political and civil unrest affecting many developing nations prompting migration to the U.S., it is critical that ACLU, other human rights advocacy organizations, and the public continue to hold ICE accountable for their treatment of immigrants and provide immigrants with a voice to bring awareness to their plight.
bh